From DSK To Duke Lacrosse: Do We Charge Rape Too Quickly?

Are prosecutors too quick to charge rape in high-profile cases like Dominique Strauss-Kahn's?

The Manhattan District Attorney's office has officially dropped its charges against Dominique Strauss-Kahn (DSK), the former International Monetary Fund chief and French presidential hopeful, who was accused last May of sexually assaulting New York hotel maid Naffisatou Diallo. To the layperson, the intricacies of the case can be confusing, at best. Did Diallo fabricate the charges? Was DSK falsely accused? Or did his wealth and power help him dodge the bullet of justice?

TheNew York Timesreports that women's groups are decrying the dismissal of charges against DSK as a denial of justice for Diallo, effectively convicting DSK solely on Diallo's say-so. DSK's supporters have likewise convicted Diallo of making false accusations. Both sides have trampled all over the basis for criminal jurisprudence: the presumption of innocence until proven guilty.

Why The Charges Were Dropped

The presumption of innocence means that until the prosecutor presents evidence such that guilt is the only logical conclusion that can be drawn, a conviction cannot be had. Prosecutors in rape cases are often faced with a "he said, she said" situation in which the alleged rapist either denies ever having "sex" with the victim or argues that it was consensual. When the alleged victim's credibility is less than sterling, it makes it extraordinarily difficult to meet the "beyond a reasonable doubt" standard, particularly when there is a dearth of compelling physical evidence, forensic evidence and percipient witness testimony. According to prosecutors, the primary evidence in the DSK case was Diallo's testimony. If, as alleged, she has credibility issues (apparently she lied about being gang-raped in her native Guinea), there's not a snowball's chance DSK would be convicted. Prosecutors know this and that's apparently why the charges were dismissed. The prosecutor has not decided that DSK is innocent, only that the charges cannot be proved.

Why are prosecutors so quick to act on allegations of rape? So quick, it seems, that they often do so, especially in high profile cases, before they have a reasonable belief they can prove the case beyond a reasonable doubt—the standard of proof required in a criminal case. When, as in the DSK and Duke lacrosse cases, charges are brought and then dropped, it leads to a trial by pubic opinion. Did he do it? Did she lie? We may never know. That doesn't, however, stop people from taking sides and having strongly held beliefs about guilt or innocence. In the DSK case, the prosecutors had but six days to charge the Frenchman or let him go—rather than request bail and gain a six-month period to build their case, which could have resulted in DSK's permanent return to France (the country lacks an extradition agreement with the US). In the Duke lacrosse case, the prosecutor acted too hastily, perhaps with career advancement in mind, and was eventually disbarred for unethical behavior.

Does Our Justice System Let The Guilty Go Free?

Where it is the prosecutor's job to prove the case beyond a reasonable doubt, it is the defense attorney's job to create reasonable doubt. Where, for example, the defense claims consensual sex, the defense need only present enough evidence to cause the jury to doubt the alleged victim's claim that no consent was given. The jury may believe that no consent was given but mere belief is not enough under the beyond a reasonable doubt standard, which is the most stringent standard under law. The jury must render its verdict based solely on the evidence presented. If the evidence may be logically interpreted as being consistent with any theory other than guilt—no matter what the jury thinks—there is reasonable doubt and an acquittal is required.

This is why juries have acquitted in the O.J. Simpson and Casey Anthony trials. Even though the jurors believed that both were guilty as charged, when they assessed the evidence presented, they concluded that it was insufficient to meet this stringent standard. In a recent New York case, where two police officers were accused of raping an intoxicated woman, the defense attorney got an acquittal by proving that, although the woman was intoxicated, she was not too drunk to have given consent. In another controversial case, the judge found that the alleged victim was wearing jeans so tight that they couldn't possibly have been removed without her assistance. This was again sufficient to create a reasonable doubt. Jury Says Women In Skinny Jeans Can't Be Raped

While it is true that, under this stringent standard, guilty people are likely to go free, our jurisprudence system is based on the premise that it is better for one guilty man to go free than for an innocent man to be convicted. Without this stringent standard, it would be far too easy to make false accusations and convict the innocent.

As things now stand, under our system of criminal justice, Strauss-Kahn didn't rape Diallo and she didn't make false accusations. It's that simple. Yes, it's also a dichotomy that leaves us unsatisfied. There are those, therefore, who decide guilt based on skimpy facts colored by their own biases, prejudices and group affiliations. Is Lying For Sex Rape? A Jerusalem Court Says So

How could the legal system better handle potential rape cases? That's not an easy question to answer. I believe, however, that society at large—you and I—are partly responsible. We form opinions and throw our support to either the victim or the accused based on our own prejudices, biases, and alliances, ignoring the basic principles of criminal jurisprudence. We understand that not all rape allegations are true just as the defense of "consent" is often bogus. That's why a conviction requires more than "she said" or "he said."

Like Lady Justice, we should wears blinders to everything but the truth. When we can't know the truth, we must fall back on the presumption of innocence even when it presents an unsettling dichotomy.

Shela Dean is an attorney who practiced criminal law and estate planning before becoming a relationship coach, author and YourTango Expert.